UK do not call list tested

Who: The Office of Communications (“Ofcom”) and the Information Commissioner’s Office (“ICO”)

When: 24 July 2014

Where: UK

Law stated as at: 5 August 2014

What happened:

Ofcom and the ICO have released the findings of a jointly-commissioned study carried out between September 2013 and May 2014 designed to assess the effectiveness of the Telephone Preference Service (“TPS”). The report specifically explored whether individuals who sign up to the TPS enjoy a decrease in the number of unwanted live marketing and sales calls received and concluded that registering will, on average, reduce such calls by about a third.

What is the TPS?

The TPS is a free service with which individuals can register in order to opt-out of receiving unsolicited calls for direct marketing purposes. It is the UK’s do-not-call list which the TPS maintains on Ofcom’s behalf. Any organisation making live calls for direct marketing and sales purposes is obliged to check the list and is not permitted to call anyone on it without the individual’s prior consent.

Although many diligent marketers adhere to the TPS restrictions, there undoubtedly exist a host of non-compliant companies who continue to pester individuals who have signed up to the TPS with calls about a range of products, services including compensation schemes relating to payment protection insurance, energy saving schemes and the like.

The ICO has responsibility for taking enforcement action against these rogue marketers and is able to issue monetary penalties of up to £500,000 for serious breach of the Privacy and Electronic Communications Regulations, which govern direct marketing communications. So far, the ICO has issued five monetary penalties for unsolicited live marketing calls totalling £410,000.

It is worth noting, however, that the TPS is not intended to be a solution against all potentially unwanted calls. Organisations carrying out calls to conduct genuine market research (with no direct marketing purpose) need not check their call registers against the TPS list and the TPS does not cover recorded marketing messages, abandoned or silent calls or text messages. Additionally, if consumers give consent to receiving marketing communications, for example by way of a tick box on an online sales form, then they may still receive legitimate sales calls from the relevant parties to which they have given consent, despite registering with the TPS.

The report

The Ofcom and ICO report concluded that registering with the TPS reduced the average number of live marketing calls received per month by 31%. It found that a reduction was not only enjoyed by those who previously received the highest volume of calls before registering, but also by those participants who received low and medium unsolicited call volumes.

In addition, whereas only 26% of people who were not registered with the TPS were lucky enough to be completely free of live sales calls, almost half (45%) of those who had registered with the TPS reported receiving zero live marketing calls during the test period.

Despite the TPS not applying directly to non-live marketing calls, such as recorded messages or silent and abandoned calls, the research found that registering with the TPS actually helped reduce all types of marketing call, including these types which fall outside the TPS’s remit. The overall fall in the volume of nuisance calls (of all types) was 35% per month.

Why this matters:

The findings of the report demonstrate that the TPS is a relatively effective tool for individuals against unwanted direct marketing calls. However, a statement by the ICO’s Deputy Chief Executive, Simon Entwisle, noted that the report “shows that too many people continue to receive them. This is why there must be no further delay in strengthening [the ICO’s] powers.”

The fact that the report was commissioned in the first place shows that unwanted marketing communications remain a focus point for Ofcom and the ICO. The findings have been shared with the Government, which is carrying out a consultation, expected later this year, on how to make it easier for the ICO to sanction non-compliant businesses.

The ICO is clearly keen to expand its powers in this regard and, as a result, businesses which carry out live direct marketing calls, whether directly or by outsourcing to marketing agencies, should bear in mind the importance of verifying call lists against the TPS register. Not only can the ICO deliver fines, something which it would appear ardent to continue to do, but it can publicly shame those companies which do not comply with the Privacy and Electronic Communications Regulations and the TPS regime. This alone has the potential to generate very negative publicity and severe reputational damage.